Predetermined? The Prospect of Social Determinant-Based Section 1115 Waivers After Stewart v. Azar

Authors

Griffin SchoenbaumFollow

Abstract

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each challenge to the Secretary’s approval of these waiver requests. In each case, the court found that the proposed demonstration project was unlikely to assist in promoting Medicaid’s objectives—due in large part to the community engagement requirements.

Throughout these cases, the Secretary argued that community engagement would likely make beneficiaries healthier. But the court responded that improving beneficiaries’ health is not a Medicaid objective and is thus an improper basis upon which to approve a waiver request. Another theme in these cases was the court’s mantra that Medicaid’s chief objective is to finance recipients’ care. Yet, to complicate matters, a different line of cases identifies Medicaid’s chief objective as not only financing recipients’ care but also ensuring its provision. If these are the objectives that a demonstration project must likely promote, many demonstration projects intended to improve health may not survive judicial scrutiny.

This Comment discusses the leading community engagement requirement case, Stewart v. Azar. It does so with an eye toward the consequences that Stewart may have for social determinant of health-based demonstration projects. This Comment argues the courts should allow the Secretary to approve at least some of these projects, despite the roadblocks that Stewart appears to present.

Recommended Citation

Griffin Schoenbaum, Predetermined? The Prospect of Social Determinant-Based Section 1115 Waivers After Stewart v. Azar, 124 Dick. L. Rev. 533 (2020).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol124/iss2/8